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concluding that a defendant's "possession of pornography was some proof that he is sexually attracted to prepubescent girls" in an aggravated sexual assault case
Summary of this case from Coburn v. StateOpinion
NO. 01-15-00220-CR NO. 01-15-00221-CR NO. 01-15-00222-CR
08-11-2016
Gary James Cox, Appellant v. The State of Texas, Appellee
Joel H. Bennett, Sears & Bennett, LLP, Houston, TX, for Appellant. Jack Roady, Criminal District Attorney, Allison Lindblade, Assistant Criminal District Attorney, Galveston, TX, for State.
Joel H. Bennett, Sears & Bennett, LLP, Houston, TX, for Appellant.
Jack Roady, Criminal District Attorney, Allison Lindblade, Assistant Criminal District Attorney, Galveston, TX, for State.
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
OPINION
Laura Carter Higley, Justice
Appellant, Gary James Cox, was charged by indictment with aggravated sexual assault of a child, failure to comply with registration requirements for a sex offender, and attempted solicitation of sexual performance of a child. Appellant pleaded not guilty. The jury found him guilty of all three charges. The trial court found the enhancements true and sentenced Appellant to life imprisonment, ten years' confinement, and ten years' confinement, respectively, with the sentences to be served concurrently. In one issue on appeal, Appellant argues that the trial court abused its discretion by admitting 2,000 images and videos of child pornography possessed by Appellant.
See Tex. Penal Code Ann.§ 22.021(a)(1)(B)(i) (Vernon Supp. 2015).
See Tex. Code Crim. Proc. Ann.art. 62.102(a) (Vernon Supp. 2015).
See Tex. Penal Code Ann.§§ 15.01(a), 43.25(b) (Vernon 2011).
We affirm for all three causes.
Background
Tom and Debbie B. were friends with Appellant when he became homeless. Taking pity on him, they would occasionally pick him up and feed him or put him in a hotel. During a family vacation in the summer of 2013, Tom and Debbie invited Appellant to housesit for them in League City, Texas. By that August, their son had reached the age of majority and moved out of their house. Tom and Debbie invited Appellant to move into their son's old room, and Appellant accepted. He lived with them from August 2013 to December 2013.
During this time, Tom and Debbie's daughters still lived at the house. Their older daughter, V.B., was 13 during the time of Appellant's stay. Their younger daughter, L.B., was three. On occasion, Appellant would be at the home with the daughters while the parents were not home. This included an occasion when Tom and Debbie were away for two days.
In December, Tom and Debbie discovered V.B. had a cell phone, which they had not given to her. On it, they found messages between Appellant and V.B. Some of Appellant's text messages to V.B. were sexually suggestive. In one exchange, Appellant asked V.B. to send him nude pictures of herself. Tom and Debbie kicked Appellant out of their house and notified the League City Police Department. When the daughters were taken to the Children Advocacy Center, L.B. made an outcry against Appellant.
At trial, V.B. testified that Appellant had given her the phone that her parents found. She testified that, before one exchange of messages between them, Appellant had shown her a picture of himself nude. The picture was on his phone, and he had shown it to her at a time when they were the only two people in the house. Some time after that, they exchanged the following messages:
[Appellant:] Do you want to hear something funny?
[V.B.:] Ok
[Appellant:] Remember those pics of me...... The special ones?
[V.B.:] Huh
[Appellant:] The ones of me, nude.
[V.B.:] Ya
[Appellant:] Well, to make it fair, where's the pics of you? Lol
[Appellant:] Gotcha
[Appellant:]?
[V.B.:] Uhh. I'm ok
[Appellant:] Lol, but now I'm supposed to see your pics....lol
[Appellant:] I'm just teasing with you
[V.B.:] I know... Phones about to die
[Appellant:] Then you better take the pics fast....hahaha
“LOL” is a recent, common abbreviation, meaning “Laughing out loud; laugh out loud (used chiefly in electronic communication to draw attention to a joke or amusing statement, or to express amusement).” Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/lol (last visited February 12, 2016).
V.B. did not send Appellant images of herself. This exchange formed the basis of the State's charge against Appellant of attempted solicitation of sexual performance of a child.
Appellant's defense to this charge during trial was that Appellant was only joking and, accordingly, never intended for V.B. to send him nude pictures. During his opening statements to the jury, Appellant's counsel argued,
I think the evidence will show totally inappropriate text messages from my client to [V.B.]. I believe the evidence will show that. But the evidence will not show that Gary Cox had the intent of actually trying to get [V.B.] to send him a nude picture. Rather, I think the evidence will show totally inappropriate humor or inappropriate attempt at humor from my client to [V.B.], but nothing more.
During his cross-examination of V.B., Appellant's counsel emphasized that Appellant repeatedly used “LOL” during the exchange and that he specifically said he was “just teasing” her.
To develop the charge of aggravated sexual assault of a child, the State presented the testimony of L.B. She was three years old at the time of the offense, but was five years old at the time of trial. When presented with a diagram of the human body, she referred to the vagina as the “bottom” and the penis as the “front.” She testified that Appellant had touched her on her “bottom” with his “front.” Appellant did not have on any pants or underwear, and he took down her pants and underwear. He was moving and something came out of his “front.”
After the trial court admitted the exhibit containing the child pornography pictures and videos—the sole issue raised on appeal—the State also presented the testimony of the child abuse specialist at the Child Advocacy Center, Angie Attaway, to whom L.B. made her first outcry against Appellant. Because our review of the admitted evidence is based on the record before the trial court at the time of the ruling, Attaway's testimony is not a part of our review. SeeRangel v. State , 250 S.W.3d 96, 97–98 (Tex.Crim.App.2008) (holding, unless issue is relitigated later in trial, appellate courts review trial court's ruling on admission of evidence based on record at time of ruling).
Appellant's defense to this charge was that L.B. was confused and that his alleged actions never happened. During voir dire, Appellant's counsel discussed with the jury about how little children act differently when something bad happens to them. He asked the jury about different ways children would act when something bad happened to them and elicited answers about children acting withdrawn, staying in their room, or eating less. During his opening statement, Appellant's counsel asserted that no physical evidence supported L.B.'s accusation, that the evidence would show that her behavior never changed, and that she never demonstrated any unusual behavior around Appellant. During his cross-examination of L.B., Appellant's counsel asked her if she knew what pretending was and if her story about Appellant was pretend. She testified that she understood pretending and that her story about Appellant was not pretend.
Near the end of the guilt-innocence phase of trial, the trial court held a hearing outside the presence of the jury on the admissibility of the State's exhibit of approximately 2,000 child pornography images and videos found on Appellant's computers and storage device. The State asserted the evidence was necessary, among other reasons, to show intent and motive and to rebut Appellant's claim that he was only joking with V.B. and did not intend for her to send him a nude picture of himself. Appellant argued that the prejudicial effect of the evidence outweighed its probative value. At the close of the hearing, the trial court stated,
I have looked at the case law that's been provided by the State. I have heard the voir dire, the opening statement by the Defense. I've heard the tenor of the cross-examination. And I believe that the evidence is probative of the ultimate issues in this case. I think they go toward issues that the jury's going to need to decide....
....
In light of [Appellant]'s ... denial of being serious about suggesting that [V.B.] provide him with pictures that would be of a pornographic nature, I think that the evidence is relevant, I think it is not unfairly prejudicial.
In balancing the interest of Mr. Cox and the State's need for this evidence, I'm going to err on the side for the State and overrule your objection.
The exhibit was created using HTML pages. The pages in the exhibit were grouped according to the device upon which the evidence had been found. For each image or video on each page, the page displayed a thumbnail-sized image of the file or video. The pages also listed certain information about the files, such as the name of the file and the size of the file on the computer's hard drive. In presenting the evidence to the jury, the State displayed some of the pages containing the thumbnail images, but did not show all of them. The record indicates that none of the images were displayed in their full size and that none of the videos were played. The reporter's record shows that the guilt-innocence phase of the trial was 230 pages long and that the discussion of this exhibit spanned 14 of those pages. The exhibit was not provided to the jury during its deliberations.
Prejudicial Effect of Evidence
In his sole issue on appeal, Appellant argues that the trial court abused its discretion by admitting the 2,000 images and videos of child pornography possessed by Appellant and that the judgment should, therefore, be reversed. Appellant argues the probative value of the pornography possessed by Appellant is outweighed by their prejudicial effect.
A. Standard of Review
“We review a trial court's ruling under Rule 403 of the Texas Rules of Evidence for an abuse of discretion.” Pawlak v. State , 420 S.W.3d 807, 810 (Tex.Crim.App.2013) (Pawlak II ). The trial court's ruling must be upheld as long as it is within the zone of reasonable disagreement. Wheeler v. State , 67 S.W.3d 879, 888 (Tex.Crim.App.2002).
B. Analysis
“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. “Evidence is unfairly prejudicial when it has ‘an undue tendency to suggest that a decision be made on an improper basis.’ ” Pawlak II , 420 S.W.3d at 809 (citing Montgomery v. State , 810 S.W.2d 372, 389 (Tex.Crim.App.1990) ) (internal quotations omitted). “Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial.” Montgomery , 810 S.W.2d at 389.
The factors considered in whether evidence is admissible under Rule 403 “includes, but is not limited to the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence.” Hernandez v. State , 390 S.W.3d 310, 324 (Tex.Crim.App.2012) (citing Montgomery , 810 S.W.2d at 389–90 ). We consider each factor in turn.
1. Probative Value of the Evidence
A Rule 403 balancing test applies only to evidence that is otherwise admissible. See TEX. R. EVID. 402 (providing relevant evidence is admissible unless otherwise prohibited); TEX. R. EVID. 403 (permitting exclusion of otherwise relevant evidence—i.e., admissible evidence—if probative value is outweighed by any iterated danger). In order to determine the probative value of the evidence, it is necessary in this case to first determine the basis for the exhibit's admissibility.
The State charged Appellant with attempted solicitation of sexual performance of a child. “A person commits an offense if, knowing the character and content thereof, he ... induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” TEX. PENAL CODE ANN. § 43.25(b) (Vernon 2011); see also TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2011) (“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”). This includes inducing a child to take a nude photograph of herself. PENAL § 43.25(a)(1)–(3).
The State also charged Appellant with aggravated sexual assault of a child. “A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the anus or sexual organ of a child by any means.” TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).
In most instances, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” TEX. R. EVID. 404(b)(1). Such “evidence may be admissible for another purpose, such as proving motive ... [or] intent.” TEX. R. EVID. 404(b)(2). A different rule applies for certain sexual offenses related to children, however.
Section 2 of Article 38.37 of the Texas Code of Criminal Procedure has a list of certain sexual offenses related to children. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(a)(1) –(2) (Vernon Supp. 2015). The section further provides that, “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,” the State may introduce evidence of an extraneous offense contained within that list in a trial for any other offense also contained within that list “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” Id. art. 38.37, § 2(b). Allegations of possession of child pornography is in the list of offenses. Id. art. 38.37, § 2(a)(1)(H). Trials for charges of attempted sexual performance of a child and aggravated sexual assault of a child are also in the list of offenses. Id. art. 38.37, § 2(a)(1)(E), (a)(1)(G), (a)(2). Pursuant to section 2 of article 38.37, then, the evidence was admissible “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” Id. art. 38.37, § 2(b).
The legislative history explains the reason for this expansion of the admissibility of evidence of such crimes in prosecution of sexual offenses against children.
Prosecuting sex crimes committed against children can be difficult due to the physical and emotional trauma suffered by the victims. This can result in long delays in reporting these crimes during which physical evidence can deteriorate or be destroyed. Often the only evidence at a trial may be the testimony of the traumatized child. Children often are targeted for these crimes, in part because they tend to make poor witnesses.
House Research Org., Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013); accordHarris v. State , 475 S.W.3d 395, 402 (Tex.App.–Houston [14th Dist.] 2015, pet. ref'd).
For the charge of attempted sexual performance of a child, Appellant's main defense was that he was only joking when he sent the texts that form the basis of the charge. Appellant's texts to V.B. included “LOL,” “hahaha,” and “I'm just teasing with you.” Intent is an element of the offense. See PENAL § 43.25(b) (“A person commits an offense if, knowing the character and content thereof, he ... induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” (Emphasis added.)); Alexander v. State , 906 S.W.2d 107, 110 (Tex.App.–Dallas 1995, no pet.) (holding intent is element of attempted sexual performance of a child). Appellant's possession of child pornography constitutes some proof that Appellant intended to solicit more child pornography.
For the charge of aggravated sexual assault, Appellant's main defense was that there was only L.B.'s word that he sexually assaulted her, while L.B. never acted like she had been harmed and never withdrew from Appellant. Appellant's possession of pornography was some proof that he is sexually attracted to prepubescent girls. See PENAL § 22.021(a)(1)(B)(i) (establishing offense for intentionally or knowingly penetrating sexual organ of a child ).
2. Potential to Irrationally Impress the Jury
In his brief, Appellant relies heavily on Pawlak II to argue we should reverse the trial court's admission of the evidence. Pawlak II concerned the admission of child pornography during the guilt-innocence phase of a trial concerning sexual assault of a child. 420 S.W.3d at 808. The defendant had been “charged with five counts of sexual assault of a child, one count of sexual assault, and two counts of attempted sexual assault.” Id. Five complainants testified at trial. SeePawlak v. State , No. 13–10–00535–CR, 2012 WL 3612493, at *1–3 (Tex.App.–Corpus Christi Aug. 23, 2012, pet. granted) (Pawlak I ). Common themes ran throughout the complaints. All five were teenage boys at the time of the alleged assault. Id. All of them accepted drinks by the defendant, either alcoholic or a specific, coconut-flavored drink. Id. All of them were drugged, either voluntarily or involuntarily. Id. The drugs rendered the boys unable to fend off the defendant's sexual assaults. See id.
The defendant presented three character witnesses at trial. Id. at *3. One defense witness referenced the allegation that the defendant had been accused of possessing child pornography along with the sexual assault allegations. Id. at *4–5. The witness added that he did not believe any of the allegations. Id. The State sought to admit the pornographic images because Appellant had opened the door to the allegations. Id. at *5. The evidence was also used to rebut the defendant's claim that he was not sexually interested in men or boys. Pawlak II , 420 S.W.3d at 810.
The evidence consisted of two exhibits. Id. One exhibit contained about 900 pornographic images, and the other contained over 9,000 pornographic images. Id. The “majority of the images” were classified as gay porn, while “many of the images were child porn images.” Id. (internal quotations omitted). Two images were published to the jury. Id. During deliberations, however, the jury requested all of the evidence and the trial court complied. Id.
The Court of Criminal Appeal's analysis was formed by two principles. First, “[w]e have held that sexually related bad acts and misconduct involving children are inherently inflammatory.” Id. at 809 (citing Montgomery , 810 S.W.2d at 397 ). Second, “[w]e have also held that it is possible for the admission of character evidence, though not necessarily cumulative, to cross the line from prejudicial to unfairly prejudicial based on the sheer volume of character evidence admitted.” Id. at 809–10 (citing Mosley v. State , 983 S.W.2d 249, 263 (Tex.Crim.App.1998) ; Salazar v. State , 90 S.W.3d 330, 336 (Tex.Crim.App.2002) ).
The court observed that the charges at trial involved sexual assault and attempted sexual assault but did not involve possession of child pornography. Id. at 810. The court acknowledged that the defendant's “possession of male pornographic pictures, including male child pornography” was relevant to rebut the defendant's “claims that he was not interested in men.” Id. It added, however, “that there was no allegation that Appellant took the pictures [in his possession] or that he in any way participated in coercing children to be involved in producing child pornography, much less that he assaulted them.” Id. Accordingly, they did not directly support the claims asserted against the defendant. Id.
For the State's proof of the charges involved in the suit, the court noted that “the State had five complainants who all testified that [the defendant] had assaulted them” and that the similarities in the complainants' testimony “were striking.” Id. at 811. In this way, the court distinguished a prior case, which involved a single complainant. Id. (citing Wheeler , 67 S.W.3d at 889 ). “Here, the State's need for the extraneous-offense evidence ... was not as great as in a ‘he-said she-said’ case with a single victim.” Id. As a result, the court concluded that “the extraneous-offense evidence was only marginally probative as a possible rebuttal of [the defendant]'s theory that he was not sexually interested in young men.” Id.
Due to the low probative value of the evidence and the large number of images,
the sheer volume of extraneous-offense evidence was unfairly prejudicial and invited the jury to convict [the defendant]
of sexually assaulting or attempting to sexually assault the victims because [the defendant] possessed 9,900 images that included homosexual child pornography. ... Even if were to decide that at least some of the extraneous-offense digital images of pornography were admissible, the trial court abused its discretion when it admitted all 9,900 images of pornography without regard to the amount of evidence, kind of evidence, or its source, and over [the defendant]'s Rule 403 objection.
Id. The court did not identify at which point the line had been crossed to become unfairly prejudicial. See id. (“The facts of this case do not require us to determine the exact point at which the admission of voluminous amounts of extraneous-offense character evidence crosses the threshold to unfairly prejudicial.”); see alsoSalazar , 90 S.W.3d at 336 (holding “there is no legal ‘bright and easy line’ for deciding precisely what evidence is and is not admissible” as character evidence).
Nevertheless, we find no basis to conclude that the court would have drawn the line of admissibility above 2,000 images. While Pawlak II concerned the admission of 10,000 pornographic images, only some of those images were actually child pornography. The concern expressed by the court was the “inherently inflammatory” effect of “sexually related bad acts and misconduct involving children,” not the more general act of possessing any kind of pornography. Pawlak II , 420 S.W.3d at 809. The opinion does not specify the amount of child pornography found in the exhibits. Instead, it states that the majority of the images were not child pornography while “many of the images were child porn images.” Id. at 810. This further supports the conclusion that the court in Pawlak II would still have found an unfairly prejudicial effect if only 2,000 images had been admitted.
Our case concerns the admission of 2,000 files of only child pornography. In addition, some small portion of these files were videos, not just still images. None of the videos were published to the jury, but the jury was informed that they existed. Based on Pawlak II, we must conclude that the exhibit of 2,000 pornographic images and videos had a significant potential to irrationally impress the jury.
Related to this factor, in Pawlak II, two images were published to the jury during the trial. Id. During its deliberation, however, the jury requested all of the evidence to be given to them, and the trial court complied. Id. ; see also TEX. CODE CRIM. PROC. ANN. art. 36.25 (Vernon 2006) (“There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.”).
Here, in presenting the evidence to the jury, the State displayed some of the HMTL pages containing the thumbnail images, but did not show all of them. The record indicates that none of the images were displayed in their full size and that none of the videos were played. The exhibit was not provided to the jury during its deliberations.
3. Time Needed to Develop the Evidence
The guilt-innocence phase of trial—from opening statements to closing statements—constitutes 230 pages of the reporter's record. Fourteen pages of the record are dedicated to the witness that developed and explained the exhibit in question, constituting six percent of the total length of the reporter's record for guilt-innocence.
4. Proponent's Need for the Evidence
In Pawlak II, the Court of Criminal Appeals determined that admitted evidence was “marginally probative as a possible rebuttal of Appellant's theory that he was not sexually interested in young men.” 420 S.W.3d at 811. Instead, the court held, the strength of the case was the “multiple victims testifying about specific incidents of inappropriate sexual behavior, and the similarities in their stories were striking.” Id.
We hold the State's need for the evidence in this case was much greater than in Pawlak II. The court in Pawlak II emphasized the difference between the facts of its case and that of a one-on-one, he-said she-said case. Id. The strength of the case in Pawlak II was in the five complainants with strikingly consistent stories. Id. Accordingly, the State's need to rebut the defendant's claim that he was not sexually interested in men or boys was not strong. Id.
Here, the basis for admitting the evidence for the charge concerning L.B. was similar to Pawlak II, but the need was much greater. We have held that the relevance of the evidence for the charge concerning L.B. was to present some proof that Appellant is sexually attracted to prepubescent girls, making the likelihood of the assault somewhat greater. See TEX. R. EVID. 401 (“Evidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.”).
While these bases for admission in Pawlak II and this case are similar, the needs for them are not. Here, there were two complainants, not five. Additionally, there was very little in common between the stories of the two complainants. In one, Appellant was communicating to a thirteen-year-old girl in a separate location, encouraging her to take an action of her own volition. In the other, Appellant was physically touching a three-year-old girl, forcing her to engage in sexual acts, and physically penetrating and assaulting her.
Moreover, L.B. was five years old at the time of trial. Her testimony was reluctant. Throughout her testimony, she would only respond with motions of her head until prompted to verbally respond. At times, she would respond in the negative to embarrassing questions until the State further developed the testimony in other ways. The very purpose of article 38.37 of the Code of Criminal Procedure was to aid in such circumstances. See House Research Org., Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013) (recognizing difficulty of prosecuting sex crimes against children and recognizing that is why children are often targeted).
The State also had a strong need for the evidence in the charge concerning V.B. There was no dispute that Appellant sent the messages concerning her sending him nude pictures of herself. The only dispute was whether Appellant was merely engaging in overly crass humor or whether he actually intended to persuade her to send the pictures. We have held that Appellant's possession of child pornography constitutes some proof that Appellant intended to solicit more child pornography.
Intent is rarely susceptible to proof by direct evidence. Christensen v. State , 240 S.W.3d 25, 32 (Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) (citing Hernandez v. State , 819 S.W.2d 806, 810 (Tex.Crim.App.1991) ). Instead, “[i]ntent is most often proven through the circumstantial evidence surrounding the crime.” Id. During the closing, the State discussed other evidence that it asserted was relevant regarding Appellant's intent, such as Appellant supplying V.B. with the phone and the home wi-fi password along with Appellant's repeated requests for the images in the messages. But it argued that the strongest evidence of intent was Appellant's possession of child pornography. We agree. Appellant's possession of child pornography demonstrated his interest in obtaining more child pornography in a stronger way than providing V.B. with a phone or wi-fi password or than sending three requests for nude pictures intertwined with suggestions that he was joking.
While we conclude that the State had a larger need for the evidence than in Pawlak II, we still must consider whether the sheer volume of the pictures and videos nevertheless outweighed this stronger need for the evidence. SeePawlak II , 420 S.W.3d at 809–10 (holding admissible character evidence can still become unfairly prejudicial based on sheer volume of evidence). To resolve this, we recognize that the State bore the burden of proving intent and of proving the elements of aggravated sexual assault beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 38.03 (Vernon Supp. 2015) (requiring “no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt”); Short v. State , 874 S.W.2d 666, 667 (Tex.Crim.App.1994) (“The State alone has the burden of proving beyond a reasonable doubt every essential element of the offense charged.”); Alexander , 906 S.W.2d at 110 (holding intent is element of attempted sexual performance of a child).
Necessarily, when the State is attempting to present evidence of possession of child pornography in support of proof of an essential element of another offense, the State must be permitted to present sufficient evidence so as to not just come up to a reasonable doubt, but to move beyond it. See TEX. CODE CRIM. PROC. ANN. art. 38.03. “[S]exually related bad acts and misconduct involving children are inherently inflammatory.” Pawlak II 420 S.W.3d at 809. But the fact that evidence is inflammatory or prejudicial does not, itself, establish that the evidence is inadmissible. Seeid. at 811 (“However, the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial.”).
Whatever amount of evidence is sufficient for the State to prove that possession of child pornography was not an aberration (so that the State could prove that the Appellant intended to attempt to obtain more child pornography) will also have an inherently inflammatory effect. Seeid. at 809. By the time the State has admitted sufficient evidence to firmly establish that a defendant's possession of child pornography was not an aberration, we have no basis for believing that any subsequent addition of volume of the evidence would have anything more than a minorly incremental effect on the inflammatory nature of the material. Nor do we discern a method by which the State or a trial court could readily discern the margin between inflammatory evidence that is sufficient to carry's the State's burden of proof beyond a reasonable doubt and the same inflammatory evidence that clearly exceeds the burden and has a significantly larger inflammatory effect.
This is what distinguishes the facts of this case from Pawlak II. In Pawlak II, the need for the pornographic images to rebut an assertion that the defendant was not sexually attracted to men and boys was minor and did not have much bearing on the State's burden of proof. Id. at 811. As a result, some smaller amount of evidence could have been admitted that would have mitigated the full inflammatory effect of such a large volume of pornographic images. See id. Given the State's need for the evidence in this case, the inflammatory effect of the evidence was unavoidable, and any excess prejudicial effect that may have been added by the volume of evidence was minorly incremental.
5. Considerations of the Trial Court
Pawlak II relied in part on Salazar, a case concerning admission of evidence of the good character of the murder victims during the punishment phase of trial. Seeid. at 809 (citing Salazar , 90 S.W.3d at 336 ). Salazar included consideration of a factor we deem relevant here. In Salazar, the trial court did not consider the evidence prior to its admission. 90 S.W.3d at 336–37. In that situation, the court acknowledged, “We generally will not ‘second guess the trial court's determination’ that a tape recording is ‘not needlessly cumulative or more prejudicial than probative’ precisely because the trial judge has reviewed offered exhibits and explicitly or implicitly balanced probative value against the Rule 403 counterfactors.” Id. at 337 n. 19 (quoting Webb v. State , 760 S.W.2d 263, 276 (Tex.Crim.App.1988) ). For that reason, “Trial judges deserve the greatest deference when they have explicitly weighed and balanced these four factors, and articulated their rationale for admitting or excluding the evidence.” Id. at 337.
Here, after the parties presented their argument to the trial court on the admissibility of the evidence under Rule 403, the trial court recessed to review the matter. Later, the trial court stated on the record that it had considered the matter, acknowledged the prejudicial effect of the evidence, stated the grounds for the State's need for the evidence, and referenced the relevant portions of the trial proceedings that supported those determinations. Ultimately, the trial court held, “In balancing the interest of Mr. Cox and the State's need for this evidence, I'm going to err on the side for the State and overrule your objection.”
“In close cases, courts should favor the admission of relevant evidence.” Id. at 338. The court in Salazar reversed the trial court's admission of the evidence because “[n]one of the Rule 403 factors weighs in favor of admissibility.” Id. Here, while we have determined one factor weighs in favor of exclusion of the evidence (the potential to irrationally impress the jury), we have also determined other factors weigh in favor of its admission (the probative value of the evidence, the State's need for the evidence, and the trial court's considered ruling). Given the probative value of the evidence, the limited emphasis placed on the evidence, the strength of the State's need for the evidence, and the careful thought of the trial court in determining its admissibility, we hold the trial court did not abuse its discretion by admitting the evidence.
We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court in all three causes.
Justice Keyes, concurring in the judgment.
Evelyn V. Keyes, Justice, concurring
I respectfully concur in the judgment only. Appellant Gary James Cox was charged with aggravated sexual assault of a child under six years of age and with attempted solicitation of a sexual performance from another child by requesting that she send him a pornographic image of herself. He complains that the admission of over 2,000 child pornography images in his possession as extraneous offense evidence was “unfairly prejudicial” because of its “sheer volume”—even though only some of the images were shown to the jury in a series of thumbnail sketches. The majority, relying heavily on an extended analysis of the Court of Criminal Appeals' opinion in Pawlak v. State , 420 S.W.3d 807 (Tex.Crim.App.2013) (called by the majority Pawlak II )—a case decided on materially different facts in every relevant regard—finds this to be a close case.
In my view, this is not a close case. The majority opinion is incorrect and misleading in suggesting that the more child pornography a defendant charged with sex crimes against minors has in his possession, the more “irrational” and “unfairly prejudicial” the effect of this evidence is to show his intent to engage in sexual activity with children and to solicit pornographic images from children—no matter what the crime with which he is charged, the facts of the case, the age of the victim, or the defenses offered by the defendant. I find nothing irrational or unfairly prejudicial about the introduction of 2,000 images of child pornography—only some of which were shown to the jury in a series of HTML pages of thumbnail images—in this case of aggravated sexual assault of a three-year-old child, which appellant denied, and attempted solicitation of sexual performance from a thirteen-year-old, which appellant claimed was just “a joke.”
Accordingly, I write separately to bring attention to the danger of future courts' reliance on the majority's overbroad construction of Pawlak and its misapplication of the burden of proof of admissibility of extraneous evidence of the possession of child pornography. I would hold that, under the correct application of the standard of proof, the evidence of appellant's possession of child pornography was clearly admissible in this case.
Admissibility of Evidence of Child Pornography
The majority correctly sets out the standard of review for the admissibility of extraneous offense evidence in a child sexual assault case. However, its heavy reliance on Pawlak leads it to elevate the standard of review of admissibility of extraneous evidence of Cox's other sex crimes far beyond that contemplated by Texas law.
Generally, all relevant evidence is admissible under the Texas Rules of Evidence. TEX. R. EVID. 402 ; Pawlak , 420 S.W.3d at 809. However, relevant evidence may be excluded under certain circumstances, such as that provided in Rule of Evidence 403, governing the admissibility of evidence challenged as impermissibly prejudicial. Rule 403 provides, “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. “Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis.” Pawlak , 420 S.W.3d at 809 (citing Montgomery v. State , 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (internal citations omitted)).
“Rule 403 favors admissibility of relevant evidence,” however, “and the presumption is that relevant evidence will be more probative than prejudicial.” Montgomery , 810 S.W.2d at 389. In determining whether evidence is admissible under Rule 403, we consider, among other things, “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence.” Hernandez v. State , 390 S.W.3d 310, 324 (Tex.Crim.App.2012) ; Montgomery , 810 S.W.2d at 389–90 ). “We review a trial court's ruling under Rule 403 of the Texas Rules of Evidence for an abuse of discretion.” Pawlak , 420 S.W.3d at 810. While evidence of an extraneous sexual offense will always carry emotional weight and the danger of impressing the jury in an irrational and indelible way, our rules of evidence require the exclusion of relevant evidence only if the danger of unfair prejudice substantially outweighs the probative value. Wheeler v. State , 67 S.W.3d 879, 888–89 (Tex.Crim.App.2002) (holding extraneous evidence of offense of touching of nine-year-old girl was relevant and probative to rebut defendant's denial of crime where successful prosecution turned on credibility of complainant in swearing match between complainant and defendant). The trial court's ruling must be upheld as long as it is within the zone of reasonable disagreement. Id. at 888.
In addition, Rule of Evidence 404 provides, “Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character,” but such “evidence may be admissible for another purpose, such as proving motive ... [or] intent .” TEX. R. EVID. 404(b) (emphasis added).
One of the essential elements of each of the crimes with which Cox was charged is criminal intent. See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2015) (criminal intent in aggravated sexual assault); id. § 43.25 (criminal intent in sexual performance by child); Alexander v. State , 906 S.W.2d 107, 110 (Tex.App.–Dallas 1995, no pet.) (intent is element of attempted sexual performance of a child). Intent to commit a crime must be proven beyond a reasonable doubt. SeeAlexander , 906 S.W.2d at 109. “Intent is most often proven through the circumstantial evidence surrounding the crime, rather than through direct evidence.” Christensen v. State , 240 S.W.3d 25, 32 (Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) ; seeHart v. State , 89 S.W.3d 61, 64 (Tex.Crim.App.2002) (“Direct evidence of the requisite intent is not required. ...”).
The majority concludes that, at least with respect to Cox's solicitation of the thirteen-year-old to send him a nude photograph of herself, “the strongest evidence of intent was [Cox's] possession of child pornography.” Slip Op. at 20. Nevertheless, after a long digression into Pawlak, it determines that, “[b]ased on Pawlak II, we must conclude that the exhibit of 2,000 pornographic images and videos had a significant potential to irrationally impress the jury,” regardless of the relevance of this evidence to the crimes to be proved or to the form in which the evidence were presented to the jury—namely as thumbnail-sized images of some of the evidence that were not taken into the jury room. Slip Op. at 17 (emphasis added). Thus, the majority weakly concludes that Cox's “possession of child pornography constitutes some proof that [he] intended to solicit more child pornography.” Slip Op. at 12.
I believe, by contrast to the majority, that this evidence was highly probative of an essential element of both Cox's intent to solicit the sexual performance of the thirteen-year-old and his intent to induce the sexual conduct of the three-year-old, in that appellant denied the assault of the three-year-old complainant and called the attempted solicitation of a sexual performance from the thirteen-year-old a joke. Thus, by finding that appellant's possession of child pornography as presented to the jury “had a significant potential to irrationally impress the jury,” the majority greatly overstates the weight of this evidence vis a vis the other elements in the proof of his claim.
I agree with the majority that the other two factors generally considered in determining the admissibility of evidence challenged as more prejudicial than probative under Rule 403 of the Texas Rules of Evidence — the time needed to develop the evidence, and the proponent's need for the evidence—both support the admissibility of the evidence of Cox's possession of child pornography. SeeHernandez v. State , 390 S.W.3d at 324; Slip Op. at 17–18. I could not say that the evidence of Cox's possession of a large amount of child pornography as introduced in this case was irrationally prejudicial. SeeWheeler , 67 S.W.3d at 889 (holding that exclusion of relevant evidence of extraneous sexual offense is require only if danger of unfair prejudice substantially outweighs probative evidence) (emphasis added).
Here, the evidence that Cox possessed large quantities of child pornography was highly probative of the essential element of intent in Cox's crimes against both children; only some of the images were displayed to the jury; none of the images were displayed in their full size; none of the videos were played; and the exhibit was not provided to the jury during its deliberations. Rather, Cox was charged with aggravated sexual assault of a three-year-old child, and his possession of pornography was relevant to rebut multiple defensive theories, including the theory that the alleged assault simply did not occur, the theory that the three-year-old child's outcry was delayed because it was a result of the investigation into lewd texts Cox sent to her thirteen-year-old sister, and the theory that Cox had a healthy relationship with both of the victims. Cox's possession of child pornography was also probative of his alleged attempted solicitation of a sexual performance of the thirteen-year-old complainant—specifically regarding his solicitation of her to send him sexually explicit photographs of herself to “make it fair,” since he had sent nude photographs of himself to her, and his characterization of this solicitation as “a joke.”
Pawlak, on which the majority relies as controlling authority, instead of Wheeler, was wholly unlike this case. In Pawlak, the defendant was tried on five counts of sexual assault against five different teenaged boys under completely different facts from those of this case. Pawlak challenged the admission of 9,900 “barely relevant” pornographic images of homosexual behavior, including child pornography, that were admitted into evidence and were taken into the jury room. 420 S.W.3d at 808–10. The State argued that the inflammatory images were probative to rebut Pawlak's allegations that he was not sexually interested in men or boys. Id. at 810. The Court of Criminal Appeals held that while the extraneous offense child pornography evidence “may have been permissible rebuttal evidence, it did not show that an assault or attempted assault was more likely to have occurred” between Pawlak and his teenaged victims. Id. Thus, it was irrelevant to proof of the offense with which the defendant was charged.
Moreover, “the State had five complainants who all testified that Appellant had assaulted them.” Id. at 811. The court found the testimony of the complainants to be “much more probative of the charged offenses than the extraneous-offense evidence because the testimony of the five complainants all alleged that Appellant sexually assaulted them, which was the ultimate issue the State had to prove at Appellant's trial.” Id. The court specifically contrasted the facts in Pawlak with those in Wheeler, stating, “Unlike in Wheeler, in which one little girl was ‘pitted against six defense witnesses whose testimony asserted or implied the events did not occur[,]’ here the State had multiple victims testifying about specific incidents of inappropriate sexual behavior, and the similarities in their stories were striking.” Id. (quoting Wheeler , 67 S.W.3d at 889 ).The Court of Criminal Appeals observed that “possession of pornography was not an issue at trial” in Pawlak, and “the extraneous-offense evidence was only marginally probative as a possible rebuttal of [Pawlak's] theory that he was not sexually interested in young men,” whereas there was highly probative testimony from each of the teenage victims, and there were striking similarities among their stories. Thus, the Court of Criminal Appeals concluded that, “[u]nder these facts the sheer volume of extraneous-offense evidence was unfairly prejudicial and invited the jury to convict [Pawlak] of sexually assaulting or attempting to sexually assault the victims because [he] possessed 9,900 images that include homosexual child pornography”—all 9,900 images of which were introduced into evidence and taken into the jury room. Id. The court held that the trial court had abused its discretion in admitting the extraneous-offense pornographic images referring to the crime of possession of child pornography. Id.
The situation here is clearly distinguishable from that in Pawlak, and the majority should have focused its analysis on the admissibility of the extraneous offense evidence as provided for under the relevant rules of evidence and factually similar case law. It should not have relied on an almost completely inapposite case, leaving the misleading impression that the admissibility of the evidence of Cox's possession of pornography was barely relevant, irrational, and highly prejudicial, as in Pawlak.
This is not a case in which this appellate Court need have concerned itself with “discern[ing] a method” for drawing a line between inflammatory evidence necessary to carry the State's burden of proof and evidence that is not necessary and “has a significantly larger inflammatory effect.” Slip Op. at 22. Nor is it a case in which the appellate court should have had to labor to discern whether the “sheer volume” of admissible, highly probative, and necessary evidence upon which the prosecution did not dwell was, by its “sheer volume” inadmissible, regardless of its great relevance, highly probative value, and the way it was used at trial. To call this a “close case” on this ground—as the majority does, Slip Op. at 24—is to misapply the burden of proof by decreeing that the volume of such highly probative evidence makes the evidence, by that very fact , “unfairly” or “irrationally” prejudicial.
The standard in assessing “the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way ” is “the potential prejudice of sheer volume, barely relevant evidence, and overly emotional evidence. ” Salazar v. State , 90 S.W.3d 330, 336 (Tex.Crim.App.2002) (emphasis added) (assessing prejudicial effect of victim impact or victim character evidence). Here, the “sheer volume” of evidence of Cox's possession of pornography was not irrationally related to his intent to commit the crimes with which he was charged, it was not “barely relevant,” and its presentation was not “overly emotional.” Thus, in assessing the admissibility of that evidence, and the correctness of the trial court's ruling, I cannot conclude—as the majority does—that this Court need rely solely on the fact that “[t]rial judges deserve the greatest deference when they have explicitly weighed and balanced [the] four factors [that determine admissibility of evidence as more probative than prejudicial under Rule 403 ], and articulated their rationale for admitting or excluding the evidence.” Id. at 337.
I agree only with the majority's conclusion that, “[g]iven the probative value of the evidence, the limited emphasis placed on the evidence, the strength of the State's need for the evidence, and the careful thought of the trial court in determining its admissibility, ... the trial court did not abuse its discretion by admitting the evidence” of Cox's possession of child pornography. See Slip op. at 909. I would overrule Appellant's sole issue.
Conclusion
I respectfully concur in the judgment.